"Freedom to convert" is counterproductive as a generalized doctrine. It fails to come to terms with the complex interrelationships between self and society that make the concept of individual choice meaningful. Hence, religious conversion undermines, and in extremes would dissolve, that individual autonomy and human freedom.

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Wednesday, August 09, 2006

Proselytisation FIR needs no sanction

Dhananjay Mahapatra
7 Aug, 2006
Times of India

NEW DELHI: This Supreme Court order is bound to have a ripple effect on
religious leaders who in one way or the other induce people to convert.

Despite the bar on courts to take cognizance of an offence relating to
proselytisation without the prosecution obtaining prior sanction either
from the Central government, state government or the district
magistrate, the police can lodge FIRs and arrest those indulging in such
activity, the court has ruled.

This ruling assumes significance in the wake of serious opposition by
secular forces to efforts by some states to enact laws to prevent
proselytisation. They had felt that these laws were meant to persecute those
arranging legitimate conversions.

Their views, till date, appeared well entrenched in the Criminal
Procedure Code which protected religious leaders from harassment at the hands
of police for their efforts to get more followers to their faith.

Section 191(1-A) of CrPC says that \'no court shall take cognizance\"
of an offence involving inducement for conversion unless the prosecution
has obtained previous sanction of the \"Central government or of the
state government or of the district magistrate\".

The Supreme Court on Friday drew an important line between courts
taking cognizance of the offence pertaining to proselytisation and police
lodging FIRs and arresting the erring religious figures indulging in the
offence.

A Bench comprising Justices G P Mathur and Dalveer Bhandari said police
do not require prior sanction of anybody in lodging an FIR or arresting
a religious leader, if there is a complaint of proselytisation against
him.

On the receiving end of this ruling was a Karnataka pastor P Raju. The
apex court set aside an order of the High Court, which had quashed a
case of proselytisation lodged against him under Section 153-B of Indian
Penal Code (IPC).

The complaint accused Raju of appealing to a Sankranthi congregation on
January 14, 2005, at Ramapura asking the people to convert to
Christianity and promising many benefits and facilities not available to them in
the Hindu religion. The Karnataka government had appealed against the
HC order quashing the case against him.

The court explained that absence of prior sanction, a mandatory
pre-requisite for a court to take cognizance of such offence, would not
prevent a magistrate from remanding to police or judicial custody of an
accused arrested by the police for the offence of proselytisation.

There is no bar against registration of a criminal case or
investigation by the police agency or submission of a chargesheet against the
accused in such cases, Justice Mathur, writing for the Bench, said.

Mere production of the arrested accused before the magistrate and the
latter remanding him to custodial detention does not amount to taking
cognizance of the offence, for which alone prior sanction is required,
the Bench said.

The HC clearly erred in quashing the proceedings against the pastor on
the ground that prior sanction of the Central government or of the
state government or of the district magistrate had not been obtained, it
said.

------Case Details-------
I thank Shri Sanjeev Nayar for providing with this copy:

2. This appeal, by special leave, has been preferred against the
judgment and order dated 23.2.2005 of Karnataka High Court by
which initiation of criminal proceedings against the respondent under
Section 153-B IPC were quashed in exercise of jurisdiction under
Section 482 Cr.P.C.

3. One R.N. Lokesha son of R.S. Narayanappa resident of
Ramapura, Channapatna, lodged an FIR alleging that at about 7.30
p.m. on 14.1.2005, he along with some other persons was celebrating
Sankranthi festival when the respondent Pastor P. Raju, who is a
member of Christian community, came there and made an appeal to
them to get converted to Christian religion where they would get
many benefits and facilities which were not available to them in
Hindu religion to which they belong. It is also alleged that many
persons who were present there resented the appeal made by the
respondent and strongly opposed the plea or assertion for their
conversion from Hindu religion to Christian religion. On the basis of
the FIR, a case as Crime No.8 of 2005 was registered under Section
153-B IPC at the concerned police station. The respondent was
arrested on 15.1.2005 and was produced before a Magistrate on the
same day who remanded him to judicial custody as no application for
bail had been filed. Subsequently, a bail application was moved under
Section 436 Cr.P.C. before the learned Magistrate which was rejected
on the ground that the offence under Section 153-B IPC being a non-
bailable offence, the power under the aforesaid provision could not be
exercised as the said provision empowered the Court to grant bail in
bailable offences only. The respondent filed a petition under Section
482 Cr.P.C. on 27.1.2005 for quashing of the proceedings initiated
against him under Section 153-B IPC in case Crime No.8 of 2005.
This petition was allowed by the High Court by the order under
challenge and the entire proceedings initiated against the respondent
were quashed.

4. The principal submission which was made before the High
Court on behalf of the respondent was that before initiating any
proceedings under Section 153-B IPC, the police ought to have
obtained previous sanction of the Central Government or of the State
Government or of the District Magistrate as required by Section
196(1-A) Cr.P.C. and in the absence of such a sanction having been
obtained, the proceedings initiated against the respondent were illegal
and without jurisdiction. After hearing counsel for the parties, the
learned judge framed the question for consideration in the following
manner :-
"Having heard the arguments of the learned counsel
appearing for the petitioner and the learned H.C.G.P. for
the respondent/State, the point that arises for my
consideration and decision is whether initiation of
criminal proceedings against the petitioner is bad in law
and whether prior sanction to prosecute a person who
tries to instigate Hindus to convert into Christianity
requires any prior sanction to register a case and arrest
the accused under Section 153-B (1) of IPC ?"
(emphasis supplied)

5. The High Court has held that as the investigating agency had
not obtained previous sanction of the Central Government or of the
State Government or of the District Magistrate as required by Section
196(1-A) Cr.P.C., the initiation of criminal proceedings against the
respondent is bad in law and consequently it was liable to be quashed.

6. We have heard learned counsel for the appellant State of
Karnataka, learned counsel for the respondent Pastor P. Raju and have
perused the record.

7. The heading of Chapter XIV of Code of Criminal Procedure is
"Conditions Requisite For Initiation Of Proceedings". The first
provision in this Chapter is Section 190 and it deals with the power of
the Magistrate to take cognizance of offences. There are some other
provisions in this Chapter which create an embargo on the power of
the Court to take cognizance of offences committed by persons
enumerated therein except on the complaint in writing of certain
specified persons or with the previous sanction of certain specified
authorities. Section 196(1-A) Cr.P.C. with which we are concerned
here reads as under :-

"196(1-A). No Court shall take cognizance of

(a) any offence punishable under Section 153-B or
sub-section (2) or sub-section (3) of Section 505 of
the Indian Penal Code, 1860 (45 of 1860), or

(b) a criminal conspiracy to commit such offence.
except with the previous sanction of the Central
Government or of the State Government or of the District
Magistrate."

A plain reading of this provision will show that no Court can
take cognizance of an offence punishable under Section 153-B or sub-
section (2) or sub-section (3) of Section 505 of Indian Penal Code or
a criminal conspiracy to commit such offence except with the
previous sanction of the Central Government or of the State
Government or of the District Magistrate. The opening words of the
Section are "No Court shall take cognizance" and consequently the
bar created by the provision is against taking of cognizance by the
Court. There is no bar against registration of a criminal case or
investigation by the police agency or submission of a report by the
police on completion of investigation, as contemplated by Section 173
Cr.P.C. If a criminal case is registered, investigation of the offence is
done and the police submits a report as a result of such investigation
before a Magistrate without the previous sanction of the Central
Government or of the State Government or of the District Magistrate,
there will be no violation of Section 196(1-A) Cr.P.C. and no
illegality of any kind would be committed.

8. After the FIR had been lodged and a criminal case had been
registered against the respondent under Section 153-B IPC, the police
arrested him as the offence disclosed was a cognizable offence.
Thereafter, the respondent was produced before a Magistrate and the
Magistrate remanded him to judicial custody. The High Court seems
to have taken the view that as the learned Magistrate remanded the
respondent to judicial custody when he was produced before him in
accordance with Section 167 Cr.P.C., it amounted to taking
cognizance of the offence. The question that arises is whether passing
of an order of remand would amount to taking of cognizance of the
offence.

9. Several provisions in Chapter XIV of the Code of Criminal
Procedure use the word "cognizance". The very first Section in the
said Chapter, viz., Section 190 lays down how cognizance of offences
will be taken by a Magistrate. However, the word "cognizance" has
not been defined in the Code of Criminal Procedure. The dictionary
meaning of the word "cognizance" is - 'judicial hearing of a matter'.
The meaning of the word has been explained by judicial
pronouncements and it has acquired a definite connotation. The
earliest decision of this Court on the point is R.R. Chari v. State of
U.P. AIR 1951 SC 207, wherein it was held :-
"Taking cognizance does not involve any formal action
or indeed action of any kind but occurs as soon as a
Magistrate as such applies his mind to the suspected
commission of an offence."

In Darshan Singh Ram Kishan v. State of Maharashtra AIR
1971 SC 2372, while considering Section 190 of the Code of 1908, it
was observed that "taking cognizance does not involve any formal
action or indeed action of any kind but occurs as soon as a Magistrate
as such applies his mind to the suspected commission of an offence.
Cognizance, therefore, takes place at a point when a magistrate first
takes judicial notice of an offence. This is the position whether the
magistrate takes cognizance of an offence on a complaint, or on a
police report, or upon information of a person other than a police
officer." In Narayandas Bhagwandas Madhavdas v. The State of
West Bengal AIR 1959 SC 1118 it was held that before it can be said
that any Magistrate has taken cognizance of any offence under Section
190(1)(a) Criminal Procedure Code, he must not only have applied his
mind to the contents of the petition but must have done so for the
purpose of proceeding in a particular way as indicated in the
subsequent provisions of the Chapter proceeding under Section 200
and thereafter sending it for inquiry and report under Section 202. It
was observed that there is no special charm or any magical formula in
the _expression "taking cognizance" which merely means judicial
application of the mind of the Magistrate to the facts mentioned in the
complaint with a view to taking further action. It was also observed
that what Section 190 contemplates is that the Magistrate takes
cognizance once he makes himself fully conscious and aware of the
allegations made in the complaint and decides to examine or test the
validity of the said allegations. The Court then referred to the three
situations enumerated in sub-section (1) of Section 190 upon which a
Magistrate could take cognizance. Similar view was expressed in
Kishun Singh & Ors. v. State of Bihar (1993) 2 SCC 16 that when the
Magistrate takes notice of the accusations and applies his mind to the
allegations made in the complaint or police report or information and
on being satisfied that the allegations, if proved, would constitute an
offence, decides to initiate judicial proceedings against the alleged
offender, he is said to have taken cognizance of the offence. In State
of West Bengal v. Mohd. Khalid & Ors. (1995) 1 SCC 684 the Court
after taking note of the fact that the _expression had not been defined in
the Code held :-
"......... In its broad and literal sense, it means taking
notice of an offence. This would include the intention of
initiating judicial proceedings against the offender in
respect of that offence and taking steps to see whether
there is any basis for initiating judicial proceedings or for
other purposes. The word 'cognizance' indicates the
point when a Magistrate or a Judge first takes judicial
notice of an offence. It is entirely a different thing from
initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the
Magistrate or the Judge. Cognizance is taken of cases
and not of persons."

It is necessary to mention here that taking cognizance of an
offence is not the same thing as issuance of process. Cognizance is
taken at the initial stage when the Magistrate applies his judicial mind
to the facts mentioned in a complaint or to police report or upon
information received from any other person that an offence has been
committed. The issuance of process is at a subsequent stage when
after considering the material placed before it the Court decides to
proceed against the offenders against whom a prima facie case is
made out.

10. In the present case neither any complaint had been filed nor any
police report had been submitted nor any information had been given
by any person other than the police officer before the Magistrate
competent to take cognizance of the offence. After the FIR had been
lodged and a case had been registered under Section 153-B IPC, the
respondent was arrested by the police and thereafter he had been
produced before the Magistrate. The Magistrate had merely passed an
order remanding him to judicial custody. Section 167 Cr.P.C. finds
place in Chapter XII which deals with Information To The Police And
Their Powers To Investigate. This Section gives the procedure which
has to be followed when investigation cannot be completed within
twenty-four hours and requires that whenever any person is arrested
and detained in custody and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed by Section 57
and there are grounds for believing that the accusation or information
is well founded, he shall be forthwith transmitted to the nearest
Judicial Magistrate along with copy of the entries in the diary. Sub-
section (2) of Section 167 will show that even a Magistrate who has
no jurisdiction to try the case can authorize the detention of the
accused. A limited role has to be performed by the Judicial
Magistrate to whom the accused has been forwarded, viz., to authorize
his detention. This is anterior to Section 190 Cr.P.C. which confers
power upon a Magistrate to take cognizance of an offence. Therefore,
an order remanding an accused to judicial custody does not amount to
taking cognizance of an offence. In such circumstances Section
196(1-A) Cr.P.C. can have no application at all and the High Court
clearly erred in quashing the proceedings on the ground that previous
sanction of the Central Government or of the State Government or of
the District Magistrate had not been obtained. It is important to note
that on the view taken by the High Court, no person accused of an
offence, which is of the nature which requires previous sanction of a
specified authority before taking of cognizance by the Court, can ever
be arrested nor such an offence can be investigated by the police. The
specified authority empowered to grant sanction does so after
applying his mind to the material collected during the course of
investigation. There is no occasion for grant of sanction soon after the
FIR is lodged nor such a power can be exercised before completion of
investigation and collection of evidence. Therefore, the whole
premise on the basis of which the proceedings have been quashed by
the High Court is wholly erroneous in law and is liable to be set aside.

11. There is another aspect of the matter which deserves notice.
The FIR in the case was lodged on 15.1.2005 and the petition under
Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the
investigation had just commenced. The petition was allowed by the
High Court on 23.2.2005 when the investigation was still under
progress. No report as contemplated by Section 173 Cr.P.C. had been
submitted by the incharge of the police station concerned to the
Magistrate empowered to take cognizance of the offence. Section
482 Cr.P.C. saves inherent powers of the High Court and such a
power can be exercised to prevent abuse of the process of any Court
or otherwise to secure the ends of justice. This power can be
exercised to quash the criminal proceedings pending in any Court but
the power cannot be exercised to interfere with the statutory power of
the police to conduct investigation in a cognizable offence. This
question has been examined in detail in Union of India v. Prakash P.
Hinduja & Anr. (2003) 6 SCC 195, where after referring to King
Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, H.N. Rishbud &
Inder Singh v. The State of Delhi AIR 1955 SC 196, State of West
Bengal v. SN Basak AIR 1963 SC 447, Abhinandan Jha & Ors. v.
Dinesh Mishra AIR 1968 SC 117 and State of Bihar & Anr. v. JAC
Saldanha & Ors. (1980) 1 SCC 554, it was observed as under in para
20 of the reports :-
"20. Thus the legal position is absolutely clear and also
settled by judicial authorities that the Court would not
interfere with the investigation or during the course of
investigation which would mean from the time of the
lodging of the First Information Report till the
submission of the report by the officer in charge of police
station in court under Section 173(2) Cr.P.C., this field
being exclusively reserved for the investigating agency."

This being the settled legal position, the High Court ought not
to have interfered with and quashed the entire proceedings in exercise
of power conferred by Section 482 Cr.P.C. when the matter was still
at the investigation stage.

12. In the concluding paragraph of the judgment under challenge,
the High Court has also observed that considering the facts and
circumstances and the allegations made in the complaint it could be
said that the initiation of criminal proceedings is abuse of process of
Court and miscarriage of justice. No reasons in support of the
aforesaid observation have been given. As already stated, the case
was still under investigation and the police was in the process of
collecting evidence. The sweeping remark made by the High Court in
the circumstances of the case was wholly unjustified.

13. For the reasons mentioned above, the appeal is allowed and the
judgment and order dated 23.2.2005 of the High Court is set aside. It
is made clear that any observation made in this order is only for the
limited purpose of deciding the appeal and shall not be construed as
an _expression of opinion on the merits of the case.

2. This appeal, by special leave, has been preferred against the
judgment and order dated 23.2.2005 of Karnataka High Court by
which initiation of criminal proceedings against the respondent under
Section 153-B IPC were quashed in exercise of jurisdiction under
Section 482 Cr.P.C.

3. One R.N. Lokesha son of R.S. Narayanappa resident of
Ramapura, Channapatna, lodged an FIR alleging that at about 7.30
p.m. on 14.1.2005, he along with some other persons was celebrating
Sankranthi festival when the respondent Pastor P. Raju, who is a
member of Christian community, came there and made an appeal to
them to get converted to Christian religion where they would get
many benefits and facilities which were not available to them in
Hindu religion to which they belong. It is also alleged that many
persons who were present there resented the appeal made by the
respondent and strongly opposed the plea or assertion for their
conversion from Hindu religion to Christian religion. On the basis of
the FIR, a case as Crime No.8 of 2005 was registered under Section
153-B IPC at the concerned police station. The respondent was
arrested on 15.1.2005 and was produced before a Magistrate on the
same day who remanded him to judicial custody as no application for
bail had been filed. Subsequently, a bail application was moved under
Section 436 Cr.P.C. before the learned Magistrate which was rejected
on the ground that the offence under Section 153-B IPC being a non-
bailable offence, the power under the aforesaid provision could not be
exercised as the said provision empowered the Court to grant bail in
bailable offences only. The respondent filed a petition under Section
482 Cr.P.C. on 27.1.2005 for quashing of the proceedings initiated
against him under Section 153-B IPC in case Crime No.8 of 2005.
This petition was allowed by the High Court by the order under
challenge and the entire proceedings initiated against the respondent
were quashed.

4. The principal submission which was made before the High
Court on behalf of the respondent was that before initiating any
proceedings under Section 153-B IPC, the police ought to have
obtained previous sanction of the Central Government or of the State
Government or of the District Magistrate as required by Section
196(1-A) Cr.P.C. and in the absence of such a sanction having been
obtained, the proceedings initiated against the respondent were illegal
and without jurisdiction. After hearing counsel for the parties, the
learned judge framed the question for consideration in the following
manner :-
"Having heard the arguments of the learned counsel
appearing for the petitioner and the learned H.C.G.P. for
the respondent/State, the point that arises for my
consideration and decision is whether initiation of
criminal proceedings against the petitioner is bad in law
and whether prior sanction to prosecute a person who
tries to instigate Hindus to convert into Christianity
requires any prior sanction to register a case and arrest
the accused under Section 153-B (1) of IPC ?"
(emphasis supplied)

5. The High Court has held that as the investigating agency had
not obtained previous sanction of the Central Government or of the
State Government or of the District Magistrate as required by Section
196(1-A) Cr.P.C., the initiation of criminal proceedings against the
respondent is bad in law and consequently it was liable to be quashed.

6. We have heard learned counsel for the appellant State of
Karnataka, learned counsel for the respondent Pastor P. Raju and have
perused the record.

7. The heading of Chapter XIV of Code of Criminal Procedure is
"Conditions Requisite For Initiation Of Proceedings". The first
provision in this Chapter is Section 190 and it deals with the power of
the Magistrate to take cognizance of offences. There are some other
provisions in this Chapter which create an embargo on the power of
the Court to take cognizance of offences committed by persons
enumerated therein except on the complaint in writing of certain
specified persons or with the previous sanction of certain specified
authorities. Section 196(1-A) Cr.P.C. with which we are concerned
here reads as under :-

"196(1-A). No Court shall take cognizance of

(a) any offence punishable under Section 153-B or
sub-section (2) or sub-section (3) of Section 505 of
the Indian Penal Code, 1860 (45 of 1860), or

(b) a criminal conspiracy to commit such offence.
except with the previous sanction of the Central
Government or of the State Government or of the District
Magistrate."

A plain reading of this provision will show that no Court can
take cognizance of an offence punishable under Section 153-B or sub-
section (2) or sub-section (3) of Section 505 of Indian Penal Code or
a criminal conspiracy to commit such offence except with the
previous sanction of the Central Government or of the State
Government or of the District Magistrate. The opening words of the
Section are "No Court shall take cognizance" and consequently the
bar created by the provision is against taking of cognizance by the
Court. There is no bar against registration of a criminal case or
investigation by the police agency or submission of a report by the
police on completion of investigation, as contemplated by Section 173
Cr.P.C. If a criminal case is registered, investigation of the offence is
done and the police submits a report as a result of such investigation
before a Magistrate without the previous sanction of the Central
Government or of the State Government or of the District Magistrate,
there will be no violation of Section 196(1-A) Cr.P.C. and no
illegality of any kind would be committed.

8. After the FIR had been lodged and a criminal case had been
registered against the respondent under Section 153-B IPC, the police
arrested him as the offence disclosed was a cognizable offence.
Thereafter, the respondent was produced before a Magistrate and the
Magistrate remanded him to judicial custody. The High Court seems
to have taken the view that as the learned Magistrate remanded the
respondent to judicial custody when he was produced before him in
accordance with Section 167 Cr.P.C., it amounted to taking
cognizance of the offence. The question that arises is whether passing
of an order of remand would amount to taking of cognizance of the
offence.

9. Several provisions in Chapter XIV of the Code of Criminal
Procedure use the word "cognizance". The very first Section in the
said Chapter, viz., Section 190 lays down how cognizance of offences
will be taken by a Magistrate. However, the word "cognizance" has
not been defined in the Code of Criminal Procedure. The dictionary
meaning of the word "cognizance" is - 'judicial hearing of a matter'.
The meaning of the word has been explained by judicial
pronouncements and it has acquired a definite connotation. The
earliest decision of this Court on the point is R.R. Chari v. State of
U.P. AIR 1951 SC 207, wherein it was held :-
"Taking cognizance does not involve any formal action
or indeed action of any kind but occurs as soon as a
Magistrate as such applies his mind to the suspected
commission of an offence."

In Darshan Singh Ram Kishan v. State of Maharashtra AIR
1971 SC 2372, while considering Section 190 of the Code of 1908, it
was observed that "taking cognizance does not involve any formal
action or indeed action of any kind but occurs as soon as a Magistrate
as such applies his mind to the suspected commission of an offence.
Cognizance, therefore, takes place at a point when a magistrate first
takes judicial notice of an offence. This is the position whether the
magistrate takes cognizance of an offence on a complaint, or on a
police report, or upon information of a person other than a police
officer." In Narayandas Bhagwandas Madhavdas v. The State of
West Bengal AIR 1959 SC 1118 it was held that before it can be said
that any Magistrate has taken cognizance of any offence under Section
190(1)(a) Criminal Procedure Code, he must not only have applied his
mind to the contents of the petition but must have done so for the
purpose of proceeding in a particular way as indicated in the
subsequent provisions of the Chapter proceeding under Section 200
and thereafter sending it for inquiry and report under Section 202. It
was observed that there is no special charm or any magical formula in
the _expression "taking cognizance" which merely means judicial
application of the mind of the Magistrate to the facts mentioned in the
complaint with a view to taking further action. It was also observed
that what Section 190 contemplates is that the Magistrate takes
cognizance once he makes himself fully conscious and aware of the
allegations made in the complaint and decides to examine or test the
validity of the said allegations. The Court then referred to the three
situations enumerated in sub-section (1) of Section 190 upon which a
Magistrate could take cognizance. Similar view was expressed in
Kishun Singh & Ors. v. State of Bihar (1993) 2 SCC 16 that when the
Magistrate takes notice of the accusations and applies his mind to the
allegations made in the complaint or police report or information and
on being satisfied that the allegations, if proved, would constitute an
offence, decides to initiate judicial proceedings against the alleged
offender, he is said to have taken cognizance of the offence. In State
of West Bengal v. Mohd. Khalid & Ors. (1995) 1 SCC 684 the Court
after taking note of the fact that the _expression had not been defined in
the Code held :-
"......... In its broad and literal sense, it means taking
notice of an offence. This would include the intention of
initiating judicial proceedings against the offender in
respect of that offence and taking steps to see whether
there is any basis for initiating judicial proceedings or for
other purposes. The word 'cognizance' indicates the
point when a Magistrate or a Judge first takes judicial
notice of an offence. It is entirely a different thing from
initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the
Magistrate or the Judge. Cognizance is taken of cases
and not of persons."

It is necessary to mention here that taking cognizance of an
offence is not the same thing as issuance of process. Cognizance is
taken at the initial stage when the Magistrate applies his judicial mind
to the facts mentioned in a complaint or to police report or upon
information received from any other person that an offence has been
committed. The issuance of process is at a subsequent stage when
after considering the material placed before it the Court decides to
proceed against the offenders against whom a prima facie case is
made out.

10. In the present case neither any complaint had been filed nor any
police report had been submitted nor any information had been given
by any person other than the police officer before the Magistrate
competent to take cognizance of the offence. After the FIR had been
lodged and a case had been registered under Section 153-B IPC, the
respondent was arrested by the police and thereafter he had been
produced before the Magistrate. The Magistrate had merely passed an
order remanding him to judicial custody. Section 167 Cr.P.C. finds
place in Chapter XII which deals with Information To The Police And
Their Powers To Investigate. This Section gives the procedure which
has to be followed when investigation cannot be completed within
twenty-four hours and requires that whenever any person is arrested
and detained in custody and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed by Section 57
and there are grounds for believing that the accusation or information
is well founded, he shall be forthwith transmitted to the nearest
Judicial Magistrate along with copy of the entries in the diary. Sub-
section (2) of Section 167 will show that even a Magistrate who has
no jurisdiction to try the case can authorize the detention of the
accused. A limited role has to be performed by the Judicial
Magistrate to whom the accused has been forwarded, viz., to authorize
his detention. This is anterior to Section 190 Cr.P.C. which confers
power upon a Magistrate to take cognizance of an offence. Therefore,
an order remanding an accused to judicial custody does not amount to
taking cognizance of an offence. In such circumstances Section
196(1-A) Cr.P.C. can have no application at all and the High Court
clearly erred in quashing the proceedings on the ground that previous
sanction of the Central Government or of the State Government or of
the District Magistrate had not been obtained. It is important to note
that on the view taken by the High Court, no person accused of an
offence, which is of the nature which requires previous sanction of a
specified authority before taking of cognizance by the Court, can ever
be arrested nor such an offence can be investigated by the police. The
specified authority empowered to grant sanction does so after
applying his mind to the material collected during the course of
investigation. There is no occasion for grant of sanction soon after the
FIR is lodged nor such a power can be exercised before completion of
investigation and collection of evidence. Therefore, the whole
premise on the basis of which the proceedings have been quashed by
the High Court is wholly erroneous in law and is liable to be set aside.

11. There is another aspect of the matter which deserves notice.
The FIR in the case was lodged on 15.1.2005 and the petition under
Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the
investigation had just commenced. The petition was allowed by the
High Court on 23.2.2005 when the investigation was still under
progress. No report as contemplated by Section 173 Cr.P.C. had been
submitted by the incharge of the police station concerned to the
Magistrate empowered to take cognizance of the offence. Section
482 Cr.P.C. saves inherent powers of the High Court and such a
power can be exercised to prevent abuse of the process of any Court
or otherwise to secure the ends of justice. This power can be
exercised to quash the criminal proceedings pending in any Court but
the power cannot be exercised to interfere with the statutory power of
the police to conduct investigation in a cognizable offence. This
question has been examined in detail in Union of India v. Prakash P.
Hinduja & Anr. (2003) 6 SCC 195, where after referring to King
Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, H.N. Rishbud &
Inder Singh v. The State of Delhi AIR 1955 SC 196, State of West
Bengal v. SN Basak AIR 1963 SC 447, Abhinandan Jha & Ors. v.
Dinesh Mishra AIR 1968 SC 117 and State of Bihar & Anr. v. JAC
Saldanha & Ors. (1980) 1 SCC 554, it was observed as under in para
20 of the reports :-
"20. Thus the legal position is absolutely clear and also
settled by judicial authorities that the Court would not
interfere with the investigation or during the course of
investigation which would mean from the time of the
lodging of the First Information Report till the
submission of the report by the officer in charge of police
station in court under Section 173(2) Cr.P.C., this field
being exclusively reserved for the investigating agency."

This being the settled legal position, the High Court ought not
to have interfered with and quashed the entire proceedings in exercise
of power conferred by Section 482 Cr.P.C. when the matter was still
at the investigation stage.

12. In the concluding paragraph of the judgment under challenge,
the High Court has also observed that considering the facts and
circumstances and the allegations made in the complaint it could be
said that the initiation of criminal proceedings is abuse of process of
Court and miscarriage of justice. No reasons in support of the
aforesaid observation have been given. As already stated, the case
was still under investigation and the police was in the process of
collecting evidence. The sweeping remark made by the High Court in
the circumstances of the case was wholly unjustified.

13. For the reasons mentioned above, the appeal is allowed and the
judgment and order dated 23.2.2005 of the High Court is set aside. It
is made clear that any observation made in this order is only for the
limited purpose of deciding the appeal and shall not be construed as
an _expression of opinion on the merits of the case.